Opinion
No. 07-1274.
Filed 5 August 2008.
Duplin County No. 06 CRS 3305, 06 CRS 50096.
Appeal by defendant from judgments entered 19 April 2007 by Judge W. Allen Cobb, Jr., in Duplin County Superior Court. Heard in the Court of Appeals 3 April 2008.
Attorney General Roy Cooper, III, by Assistant Attorney General Chris Z. Sinha, for the State. Office of the Appellate Defender, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
The trial court acted within its discretion under N.C. Gen. Stat. § 15-166 when it closed the courtroom for the duration of a 14-year-old child victim's testimony and made findings of fact which supported its decision and showed proper consideration of the factors set forth in Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31 (1984).
I. Factual and Procedural Background
On 30 May 2006, defendant was indicted for two counts of first-degree rape of a child under 13, two counts of first-degree sexual offense of a child under 13, and two counts of indecent liberties with a child. All charges involved the same child. On 18 April 2007, a jury returned a verdict of guilty on all counts. The indecent liberties charges were submitted to the jury on two theories: (1) for the purpose of arousing or gratifying sexual desire, or (2) by committing a lewd or lascivious act upon the child. The jury returned guilty verdicts upon each theory for both charges. The trial court arrested judgment under N.C. Gen. Stat. § 14-202.1(a)(2) as to each indecent liberties charge based upon the theory of lewd and lascivious conduct. The court consolidated the offenses into two judgments which imposed consecutive sentences of 156 to 197 months imprisonment. Each sentence was from the mitigated range. Defendant appeals.
II. Closing of Courtroom During Victim Testimony
In his sole argument, defendant seeks a new trial on the basis that the trial court violated his constitutional right to a public trial by closing the courtroom under N.C. Gen. Stat. § 15-166 when the State failed to proffer any case-specific and witness-specific justification for doing so. We disagree.
Citing State v. Jenkins, 115 N.C. App. 520, 525, 445 S.E.2d 622, 625 (1994), defendant argues that State v. Burney, 302 N.C. 529, 276 S.E.2d 693 (1981) is "inconsistent with the subsequent holding in Globe Newspaper Co. [v. Superior Court] that `particularized determinations in individual cases' are required to support a closure order even for the testimony of child victims in sex offense trials." 457 U.S. 596, 611, fn. 27, 73 L. Ed. 2d 248, 260, fn. 27 (1982). Defendant contends that: (1) the requirements of Waller must be met before closure may be ordered pursuant to N.C. Gen. Stat. § 15-166; (2) none of the Globe factors supported closure; and (3) the State failed to proffer that the prosecutrix would suffer any injury from testifying. Finally, he asserts that the court's findings failed to constitute a "particularized determination" that closure was narrowly tailored to achieve an overriding interest sufficient to overcome the presumption of openness.
At trial, the State sought to close the courtroom under N.C. Gen. Stat. § 15-166 during the testimony of the alleged child victim. Defendant objected on constitutional grounds. Outside the presence of the jury, the court conducted a hearing to consider the State's motion. The State argued that the victim's young age and the sensitive nature of the case warranted closing the courtroom to persons other than those listed in the statute, and that the defendant would not be prejudiced by the exclusion of "non-essential" persons from the courtroom. On his constitutional challenge, defendant contended that "age alone was not sufficient" to warrant closing the courtroom; the State was required to show that open proceedings would traumatize this witness; and the State had not met this burden.
Invoking its discretion under N. C. Gen. Stat. § 15-166, the trial court concluded that the State had advanced an overriding interest that it was likely to be prejudiced if the court was not closed during the child's testimony and that such closure was not broader than necessary to protect that interest. In support of its ruling, the court made the following findings:
(1) that due to the tender age of the prosecuting victim, who will be 14 at the time of her testimony, who was 12 years old at time of this alleged offense[; (2)] the fact that the defendant is charged with serious sex offenses and as a result it will be necessary for the prosecuting victim to discuss issues of a sexual nature and sexual contact, which is not a natural subject for one of such tender age to be discussing in the normal course of events[; (3)] the fact that she will testify in this case in an unnatural environment for her to talk about such subjects and therefore the, the delicacy increases when she is required to do so in front of strangers . . . [; (4)] that the statute allows for exclusion of those other than the defendant, himself, the defendant's family, his lawyers, and witnesses, the prosecutor, the State's witnesses, valid officers of the Court, the jury, and the victim, herself, that no prejudice will result to the defendant because he will, in fact, be present along with those pertinent to his defense[; and (5)] the fact that the minor victim will be testifying in front of others in the court who are permitted to remain under the statute, the child doesn't know those people, and it will, in and of itself, result in certain pressures on her, in and of themselves.
When the State called the child as a witness, the court ordered the courtroom cleared of all persons except defendant and his family, his attorney, defense witnesses, the prosecutor, the State's witnesses, officers of the court, the members of the jury, and the members of the child's family.
N. C. Gen. Stat. § 15-166 provides:
In the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.Id. (2005). In reaching a determination to close the courtroom under N.C. Gen. Stat. § 15-166, the court may not rely solely on the statute but must consider the Waller factors:
In clearing the courtroom, the trial court must determine if the party seeking closure has advanced an overriding interest that is likely to be prejudiced, order closure no broader than necessary to protect that interest, consider reasonable alternatives to closing the procedure, and make findings adequate to support the closure.
Jenkins, 115 N.C. App. at 525, 445 S.E.2d at 625 (citing Waller, 467 U.S. at 48, 81 L.Ed.2d at 39); see also Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000) (noting that "closing the courtroom in circumstances such as these is indisputably appropriate under Supreme Court jurisprudence, provided the trial judge `determines on a case-by-case basis [that] the State's legitimate concern for the well-being of the minor victim necessitates closure.'"), affirming Bell v. Jarvis, 7 F. Supp. 2d 699 (E.D.N.C. 1998).
Defendant's reliance on Globe is misplaced. In Globe, the United States Supreme Court reviewed a mandatory state law that excluded the press and general public during the testimony of a minor victim in a sex-offense trial. 457 U.S. at 602, 73 L. Ed. 2d at 255. The Court struck down the state law on First Amendment grounds, Id. at 611, 73 L. Ed. 2d at 260, and noted the narrowness of its holding in Footnote 27:
We emphasize that our holding is a narrow one: that a rule of mandatory closure respecting the testimony of minor sex victims is constitutionally infirm. In individual cases, and under appropriate circumstances, the First Amendment does not necessarily stand as a bar to the exclusion from the courtroom of the press and general public during the testimony of minor sex-offense victims. But a mandatory rule, requiring no particularized determinations in individual cases, is unconstitutional.Id. (quoted in Bell, 236 F.3d at 167-168, which further stated that the Globe Court "made clear that `safeguarding the physical and psychological well-being of a minor' victim of sex crimes, including protecting them from further trauma and embarrassment, is precisely the type of compelling interest that can overcome the presumption in favor of an open trial."). The Globe Court further noted that "we intimate no view regarding the constitutionality of [discretionary] state statutes[,]" including the 1981 version of N.C. Gen. Stat. § 15-166. Globe, 457 U.S. at 609, 73 L. Ed. 2d at 259, fn. 22.
Where our statute is discretionary, rather than mandatory, we find unavailing defendant's assertion that a "particularized determination" requires a subjective demonstration of harm to the minor sex victim. This interpretation is consistent with the Globe holding. Indeed, citing Richmond Newspapers, Inc. v. Virginia, the Globe Court was careful to note that "[a]lthough the right of access to criminal trials is of constitutional stature, it is not absolute." Globe, 457 U.S. at 606, 73 L. Ed. 2d at 257.
In addressing similar arguments involving First Amendment challenges in trials involving minor sex offense victims, our Supreme Court has held that "a trial judge in the interest of the fair administration of justice may impose reasonable limitations upon the access of the public and the press to a criminal trial." Burney, 302 N.C. at 538, 276 S.E.2d at 698 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973 (1980)). Speaking of the delicate nature of child sex abuse, the Court noted that "It is this delicacy, as well as the age of the child, which makes out a showing of an overriding interest to justify closure." Id. We hold that Burney controls the disposition of this matter and that defendant's reliance on Jenkins, 115 N.C. App. at 525, 445 S.E.2d at 625, is inapposite.
The trial court in Jenkins made no detailed findings regarding its decision to close the courtroom. Here, the trial court held a hearing on the motion in which it considered arguments from both parties before making detailed findings that reflected its consideration of the Waller factors. Although the State did not argue specific injury or trauma to this witness from open court proceedings, there is no requirement under either the statute or prevailing case law that it do so. Finally, the trial court properly relied on Burney in determining that the State's case could be prejudiced by the sensitive nature of the child's expected testimony and made detailed findings regarding the fundamental reasons for its ruling. 302 N.C. at 537-38, 276 S.E.2d at 698; see also Bell, 7 F. Supp. 2d at 703 ("a court need only articulate its fundamental reasons for closing a courtroom and is not required to exhaustively articulate every observation and inference underlying its decision"); Bell, 236 F.3d at 170 ("Like the district court, we believe it reasonable to conclude that the temporary closure of Bell's trial did not run afoul of the decision in Globe or otherwise fall short of Waller's findings requirement."). As in Burney, there was no general exclusion of the public or to the proceedings as a whole but a limited exclusion for the duration of a child's testimony, Burney, 302 N.C. at 537-38, 276 S.E.2d at 698, and the announced closing took place outside of the presence of the jury.
Where a ruling of the trial court is discretionary, the court "may be reversed for abuse of discretion only upon a showing that its actions are `manifestly unsupported by reason.'" Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citations omitted). "A ruling committed to the trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision." Id. (quotation omitted). On this record, we cannot say that the trial court's ruling was arbitrary or anything other than the result of a reasoned decision. Id. This argument is without merit.
Defendant's brief addresses only four of eight original assignments of error. Pursuant to N.C. R. App. P. 28(b)(6) (2007), the remaining assignments of error are deemed to be abandoned.
NO ERROR.
Judges McCULLOUGH and ARROWOOD concur.
Report per Rule 30(e).